Memo

BILL NUMBER:S2898

TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to section 7 of article 1 of the constitution, in relation to the taking of private property; and repealing section 7 of article 1 of the constitution relating to just compensation for taking private property

PURPOSE: This amendment prohibits the taking or transfer of private property to another private owner or for economic development purposes.

SUMMARY OF PROVISIONS: Section 1 -- Repeals the current section 7 of article 1 of the New York State Constitution and replaces it with the following:

Paragraph (a) allows private property to be taken for a public use, only. Property that is taken must be possessed and occupied by the government. Also, the government must provide just compensation to property owners whose land is taken.

Paragraph (b) prohibits takings of private property for economic development purposes, use by a private business, or for any other private use. Privately owned common carriers are exempted from this provision. Additionally, state and local governments are not permitted to take private property and transfer it to another private owner.

Finally, paragraph (c) states that whenever there is a question about a taking being for a truly public use, the question shall be a judicial question, and the court, when determining the answer, shall not consider any legislative assertions that the use is for a public purpose.

Section 2 -- Effective date.

EXISTING LAW:

Article 1, section 7, paragraph (a) of the New York State Constitution allows private property owners to receive "just compensation" when their property is taken by the government for a "public use."

Paragraph (c) of that same article and section allows private roads to be taken for public use. Compensation is determined by a jury and awarded -- along with costs for the proceedings -- to the individual whose private road was taken.

Finally, paragraph (d) declares that the drainage of a swamp or agricultural lands to be a public use. This paragraph allows the State Legislature to pass laws permitting the owners or occupants of swamp or agricultural land to construct and maintain drainage facilities upon the land owned by other individuals. The burdened party, however, is entitled to receive compensation.

JUSTIFICATION:

In June 2005, the U.S. Supreme Court handed down a decision in the case of Kelo v. City of New London, Connecticut. The Court -- in a 5 to 4 decision -- stated that New London had the power to take privately owned property and transfer ownership of the property to another private entity. The Kelo decision, however, does not prevent states -- through state constitutions and statutes -- from protecting the fundamental property rights of homeowners and small business owners.

This amendment permits eminent domain takings only when the taking is for a truly public use. Takings for economic development purposes or for the benefit of a private business are completely prohibited by this amendment. Additionally, under this amendment to the New York State Constitution, government is not allowed to take private property and transfer the property to another private owner.

LEGISLATIVE HISTORY:

S.5961-A/A.9710-A of 2005-2006 S.2302/A.660 of 2007-2008 S.1504/A.2985 of 2009-2010

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

RESOLVED (if the Assembly concur), That the foregoing amendments be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and, in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.

Text

STATE OF NEW YORK
________________________________________________________________________
2898
2011-2012 Regular Sessions
IN SENATE
February 3, 2011
___________

Introduced by Sens. DeFRANCISCO, LANZA, LARKIN, LAVALLE, RANZENHOFER --
read twice and ordered printed, and when printed to be committed to
the Committee on Judiciary
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing an amendment to section 7 of article 1 of the constitution, in
relation to the taking of private property; and repealing section 7 of
article 1 of the constitution relating to just compensation for taking
private property
Section 1. Resolved (if the Assembly concur), That section 7 of arti-
cle 1 of the constitution is REPEALED and a new section 7 of article 1
is added to read as follows:
S 7. (A) WITH JUST COMPENSATION PAID, PRIVATE PROPERTY MAY BE TAKEN
ONLY WHEN NECESSARY FOR THE POSSESSION, OCCUPATION, AND ENJOYMENT OF
LAND BY THE PUBLIC AT LARGE, OR BY PUBLIC AGENCIES.
(B) EXCEPT FOR PRIVATELY OWNED COMMON CARRIERS AND PUBLIC UTILITIES,
PRIVATE PROPERTY SHALL NOT BE TAKEN FOR USE BY PRIVATE COMMERCIAL ENTER-
PRISE, FOR ECONOMIC DEVELOPMENT, OR FOR ANY OTHER PRIVATE USE, EXCEPT
WITH THE CONSENT OF THE OWNER. PROPERTY SHALL NOT BE TAKEN FROM ONE
OWNER AND TRANSFERRED TO ANOTHER, ON THE GROUNDS THAT THE PUBLIC WILL
BENEFIT FROM A MORE PROFITABLE PRIVATE USE.
(C) WHENEVER AN ATTEMPT IS MADE TO TAKE PRIVATE PROPERTY FOR A USE
ALLEGED TO BE PUBLIC, THE QUESTION WHETHER THE CONTEMPLATED USE BE REAL-
LY PUBLIC SHALL BE A JUDICIAL QUESTION, AND DETERMINED AS SUCH WITHOUT
REGARD TO ANY LEGISLATIVE ASSERTION THAT THE USE IS PUBLIC.
S 2. Resolved (if the Assembly concur), That the foregoing amendment
be referred to the first regular legislative session convening after the
next succeeding general election of members of the assembly, and, in
conformity with section 1 of article 19 of the constitution, be
published for 3 months previous to the time of such election.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD89046-01-1

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